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It took a woman Judge, Indu Malhotra to get the Supreme Court to ‘man-up’ and apologise for allowing Section 377 to stay on the statute books. An apology was long overdue. The Court’s previous ruling in Koushal v Naz (2013) had upheld the constitutionality of the provision. That Judgment was an abomination – both for its effect on the lives of citizens and its (spectacular lack of) legal reasoning. It turned the clock back on more than four years of equal citizenship that had been confirmed by the Delhi High Court. More significantly, it seemed to be the end of the road for almost three decades of progress made by the LGBT movement in India. Five years later, 6.9.2018 would go down as the high water mark, of one modern India’s most well-documented struggles.

Historical Origins

Section 377 is based on an archaic conception of sexual relations. It was introduced as an anti-sodomy law in India by the British crown through Section 377 of the Indian Penal Code. With time the original Sexual Offences Act of 1967 decriminalised the acts of homosexuality and sodomy between two consenting adults in England but Section 377 persisted. The provision reads:

377. Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

The section has for long been understood to criminalise sexual acts by same-sex couples. This was not the case. The thrust of Section 377 is to criminalise sexual acts which are “against the order of nature”. What the term means, is anyone’s guess, and a heterosexual couple could conceivably have been proceeded against, under this section.

The provision is based upon traditional Judeo-Christian moral and ethical standards. These perceive sex purely in functional terms - for the sole purpose of reproduction. Any non-procreative sexual activity is viewed as being “against the order of nature”. Thus, S 377 criminalised consensual acts between hetrosexual and same-sex couples equally.

There comes a time when people get tired of being trampled over by the iron feet of oppression. There comes a time, when people get tired of being plunged across the abyss of humiliation, where they experience the bleakness of nagging despair. (Martin Luther King Jr, 1955)

In India, that time possibly first came in 1991. The AIDS Bedhbhav Virodhi Andolan (ABVA), had organised a protest against police harassment. This was the first time that a demand for the repeal of the law was made publically. The first legal challenge was filed by ABVA in 1994. This was in response to a statement by Kiran Bedi that she could not distribute condoms in prison as it would amount to abetting an offence under Section 377. The petition was dismissed as the ABVA group became defunct. The next key development was the filing of a petition by the Naz Foundation challenging Section 377 in 2001.

Legal Challenges

S. 377 was ‘read down’ by a Division Bench of the Delhi High Court in July, 2009. The Court declared that “Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution.” The Court went to clarify that S. 377 would continue to govern non-consensual ‘penile non-vaginal sex’ and ‘penile non-vaginal sex’ involving minors.

The Delhi High Court Judgment was an important moment for the politics of identity in India. Writes Vikram Raghavan, “Naz Foundation, unlike any other decision before it, has the unique potential to diminish popular, but irrational, moral condemnation of stigmatized groups…Indeed, the mass publicity and fanfare heralding the decision presents a rare opportunity for activists to reshape public opinion and influence a wider social debate about gay rights.

The Judgment of the Delhi High Court was accepted by the governments of the day. They did not challenge it before the Supreme Court. Instead, one Suresh Kumar Koushal, an astrologer in New Delhi’s Preet Vihar, filed a Petition challenging the verdict. He was a stranger to the proceedings.

Yet, the Supreme Court chose to entertain his appeal. In December, 2013 a Supreme Court bench comprising Justice GS Singhvi and Justice SJ Mukhopadhaya set aside the Judgment of the Delhi High Court. It characterised the LGBT community as a “miniscule fraction of the country’s population”. It held the High Court had erroneously relied upon international precedents “in its anxiety to protect the so-called rights of LGBT persons”.

In the past five years, it remained one of the most criticised Judgments passed by the Court. Review Petitions filed by the Union Government and other parties were dismissed. A small window of hope emerged, when the curative petition filed by Naz Foundation was referred to a bench of 5 judges.

The Right to Privacy

Around the same time as the Naz Foundation hearings were taking place, another legal challenge reached the Supreme Court. In 2012, several petitions were filed challenging the Aadhaar Scheme, stating that it infringed upon an individual’s right to privacy. Sometime in 2015, the then Attorney General of India challenged the existence of such a right. This led to the August, 2017 Judgment, where a bench of 9 judges of the Supreme Court unanimously affirmed an individual’s right to privacy.

In doing so, 7 judges – Justice Chandrachud (speaking for himself, Chief Justice Khehar, Justice Agrawal and Justice Nazeer), Justice Kaul and Justice Nariman were deeply critical of the Court’s approach in Suresh Kumar Koushal. Following this, numerous petitions were filed before the Supreme Court, challenging the validity of S. 377 once again. In January, 2018, these were referred to a Constitution Bench. The writing was, but on the wall.

The Judgments

Four of the five judges on the Constitution bench, in Navtej Johar, have written opinions, each of them reading down S. 377. The Chief Justice (also speaking for Justice Khanwilkar), has stressed on the importance of ‘constitutional morality’. He goes on to refer to the transformative nature of the Constitution that recognised that Fundamental Rights are not just for the majority.

Justice Nariman’s opinion recognizes that all individuals, regardless of their sexual orientation have the right to live with dignity. He also holds that laws enacted before the Constitution, cannot be assumed to be constitutional. Significantly, Justice Nariman recognizes the stigma attached to being identified as a member of the LGBT community. He therefore directs the State take measures to ensure that the judgment is given publicity to eliminate the stigma associated with membership of the community.

In a deeply empathetic judgment, Justice Chandrachud recognizes the “crucial role of sexual autonomy in the idea of a free individual.” He goes on to hold that the choice of whom to partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation.

Justice Indu Malhotra, in her opinion recognizes Sexual orientation is an innate attribute of one’s identity, and cannot be altered. The Judge goes on to hold that the phrase “order of nature” is too open-ended and open to misuse. She goes on to observe that history owes an apology to the members of this community and their families.

“Fundamental rights do not depend upon the outcome of elections”

Yesterday’s Judgment, the Supreme Court’s Judgment of 2013 and the Delhi High Court’s Judgment of 2009 are each separated by a gap of about four and a half years. Yet the 2013 Judgment seems to inhabit a different world of Victorian prudery. It is difficult to pin-point the factors that account for the difference.

The Supreme Court yesterday, and the Delhi High Court in 2009 displayed legal acumen and a remarkable sense of empathy, in recognizing the counter-majoritarian role court play. In 2013, the Supreme Court called the LGBT community a “miniscule minority” and then told them to take their case to an inherently majoritarian institution - Parliament. Siddharth Narrain, in a piece written in December, 2013 had predicted – “While Koushal is the law today, it is the spirit of Naz that will stand the test of time.” The prophesy proved to be true.

There comes a time in the history of nations when fear and forgetfulness cause a nation to hesitate, to waver, and perhaps even to succumb. When that time comes, those who love liberty must rise to the occasion. A “miniscule minority” through its dogged persistence has shown us the way. As Margaret Mead wrote, “Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it's the only thing that ever has.”. As dark clouds loom over our little freedoms, one hopes that the example set by the LGBT community, inspires other ‘lovers of liberty to rise to the occasion.’

The authors are lawyers who practise in the Supreme Court. They tweet @sanjayuvacha@parahoot Disclaimer: Views expressed are personal. They do not reflect the view/s of Business Standard.